This is the second of two posts based on session I attended recently entitled What’s private and what’s public? Data Protection and Freedom of Information. This post does not constitute formal legal advice.
The Freedom of Information Act 2000 (FoI) refers to information which you have an obligation to provide, whereas the Data Protection Act 1998 (DPA) is concerned with information which you must not disclose.
FoI is underpinned by the public right to know what is done by public bodies and how they operate.
The basic FoI right is to be informed in writing by the public authority whether it holds info of the description specified in the request; and if this is the case, to have that info communicated within twenty working days.
Most libraries and archives are publicly funded, and therefore affected by FoI. The focus is on policies and procedures but FoI affects all information held, including manuscripts and rare books.
Is it an FoI request?
- It must be in writing and include an address to which reply can be made
- The request does not have to come from someone based in the UK
- The request does not have to mention FoI explicitly
Does this sound familiar? Most reference enquiries will come under the Act, so in fact many libraries were complying with the principles of FoI long before the Act came into being.
No need to supply the information if:
- it is accessible by other means
- It would adversely affect commercial interests
- it would contravene data protection provisions
- it would breach confidences
- it is not your information to share
- you plan to publish it soon
- it would cost too much
More details about FoI exemptions
- it is accessible by other means – policies and procedures may already exist on your website, but it would be good practice to supply a copy anyway. Other example: reference requests where the information exists in books which could be purchased by the enquirer or accessed via a local library, inter-library loan or at the British Library
- it would adversely affect commercial interests – for example, information about preferred supplies or buildings contracts
- it would contravene data protection provisions – such as disclosing personal information about another person
- it would breach confidences – not a complete exemption, as you must still weigh the public interest
- it is not your information to share – such as deposited manuscripts or other material given but with conditions, or information affecting other University bodies
- you plan to publish it soon – for example, a catalogue or critical edition. Informal advice suggests that a time frame of “within three years” is reasonable. It does not have to be the library that is the publisher of the information
- it would cost too much – when considering expense, distinguish between (1) gathering/establishing the info, (2) deciding whether it’s exempt and (3) producing/supplying the info.
Deciding whether it’s exempt is not chargeable
Producing/supplying the information is chargeable at cost in advance
Calculating the costs of gathering the information is more complicated. The cost is calculated at £25/hour to a maximum of £450 – the equivalent of 18 hours’ work.
If the costs of gathering the information will be less than this, you must supply the information for no more than the cost of supply (i.e. you must absorb up to 18 hours’ worth of work time).
However, if the costs of gathering the information will be more than 18 hours, you may decline to fulfil the request; offer to do it under FoI and charge at £25 per hour; or offer to do it outside the terms of the FoI.
There is no fee chargeable for fulfilling FoI requests, unlike DPA-related enquiries where data subjects can ask to see all our records relating to them within 21 days, for a small admin fee.
Helping the enquirer
Do everything you can to help the enquirer with their request. If the information they’re asking for is too broad or vague, advise them to rephrase their request. If they make the request by phone or in person, advise them to make a proper request in writing.
The time limit of responding to FoI requests within twenty working days includes Mondays-Fridays only, not weekend days. It excludes public holidays but not other closed days, and does not take account of personal leave.
The clock starts with initial receipt of the request by the University and ends with supply or refusal of the request.
Each department of the University should have a nominated first point of contact for all FoI matters. The team which receives the original request is responsible for assessing it and seeking assistance if necessary.
Date stamp on opening, identify person/dept opening and any forwarding dates or details Assess within two working days Respond within another 8 working days Open mail for employees away for more than 10 working days (or fewer by agreement) unless marked private or personal Open mail if just marked confidential
It is recommended that you have a folder for FoI emails and keep all correspondence (including replies) for one year.
If you will be away from work for more than 10 working days, ensure that your auto-reply includes an invitation for anyone with a request for information to resubmit it to another specified address.
Providing the answer
The enquirer may express a preference for receiving a copy of the material, a summary of the content of the material, or coming to inspect the material.
They may request to have the material in a re-usable form e.g. as a spreadsheet, not a PDF. Accede to the preference unless other factors apply.
Copies can exceed fair dealing limits but should be accompanied by a note about legitimate use of the material.
- Policies and procedures – these are often sensitive
- Misdirected requests – the time needed to reroute the request is included within the time limit
- Manuscripts and rare items – is it unique or effectively unique? Refers to terms and conditions, and consider whether they include personal information about a living person
- Time limits
In summary, think of most FoI requests like normal reference enquiries and do everything you would normally do in terms of providing a prompt, helpful reply.
In trickier cases, seek advice from your nominated FoI contact and record all the steps you take, including forwarding messages to other teams or awaiting a reply from someone else and keep it all moving along so that you can respond to the enquirer within the time limit.
See also: Libraries and the Data Protection Act